Criminal Litigation: Step-By-Step

Criminal Law & Procedure For Paralegals Criminal Litigation: Step-By-Step Path of Criminal Cases in Queens Commencement Arraignment Pre-Trial Trial Getting The Defendant Before The Court! There are four methods to getting the defendant before the court 1) Warrantless Arrest 2) Appearance Ticket 3) Arrest Warrant 4) Summons 1

Probable Cause! In order to seize a person, there must be probable cause (CPL 70.10 [2]).! Probable cause = Reasonable cause! Reasonable cause:! reasonably likely that such offense was committed and that such person committed it.! Hearsay.! Such apparently reliable evidence may include or consist of hearsay. Warrantless Arrest (CPL Art140)! A person who has committed or is believed to have committed a criminal offense and who is at liberty within the state may be arrested for such offense.! No need for a warrant! No need for a criminal action to have started. When Can A Police Officer Make An Arrest! Criminal Offense (Crime or Petty Offense).! If the PO witnesses the criminal offense and has PC, the PO can arrest! Crime (Felony Or Misdemeanor).! If the PO does not witness the crime BUT has PC from an eyewitness, the PO can arrest.! Hearsay allowed.! Petty Offense (Violation or Petty Offense).! PO must witness the offense.! No hearsay. 2

Appearance Ticket (CPL Art 150)! Written notice issued and subscribed by a police officer! Directs the defendant to appear in a designated local criminal court at a designated future time in connection with his alleged commission of a designated offense.! A notice conforming to such definition constitutes an appearance ticket regardless of whether it is referred to in some other provision of law as a summons or by any other name or title.! Available for defendants who are charged with Misdemeanors and some Class E Felonies.! Desk Officer can set pre-arraignment bail. Arrest Warrant (CPL Art 120)! A warrant of arrest is a process! issued by a local criminal court! directing a police officer to arrest a defendant designated in an accusatory instrument filed with such court and! to bring him before such court in connection with such instrument. Requirements For An Arrest Warrant! There must be a valid accusatory instrument filed in court! Judge directs police officer to arrest defendant in accusatory instrument! Judge directs police officer to bring defendant before the court The Summons (CPL Article 130)! There must be a valid accusatory instrument! Issued by a local criminal court directing the defendant to appear before it. 3

Commencement of a Criminal Action & Arraignment 1 A criminal action commences with the filing by the prosecutor of an accusatory instrument with the court. 2 Once the instrument is filed, the next step is to get the defendant to appear in court. Once the defendant appears in court, arraignment can occur. Filing of Accusatory Instrument Defendant Appears Arraignment Accusatory Instruments! The accusatory instrument is! A written document or series of documents! Notifies the defendant! What criminal offenses he or she is being charged with and! the factual basis for that charge or charges.! Only certain instruments Types of Accusatory Instruments 1) Indictment; 2) Information; 3) Prosecutor s Information; 4) Misdemeanor Complaint; 5) Felony Complaint; and 6) Simplified Information. 4

Preliminary Versus Trial Jurisdiction! Preliminary Jurisdiction! In order to commence a criminal action, the court needs preliminary jurisdiction.! Any accusatory instrument gives the court preliminary jurisdiction! Cannot take a plea! Cannot go to trial! Trial Jurisdiction! In order to take a plea or to go to trial! Need Indictments and Informations Accusatory Instrument Process Gathering Information Telling the prosecutor Drafting accusatory instrument Filing Accusatory Instrument Accusatory Instruments The Four Biggies Preliminary Jurisdiction Misdemeanor Complaint Felony Complaint Trial Jurisdiction Information Indictment 5

Misdemeanor Complaint! Written accusation! sworn under the penalty of perjury! Filed with a local criminal court (Criminal Court),! Can charge on person or more than one person (acting in concert)! Must charge at least one misdemeanor (can be more than one)! In addition can also charge petty offense! Can charge more than one offense! Starts the criminal action! If the defendant waives prosecution by information there can be a plea Information! Written accusation! sworn under the penalty of perjury! Filed with a local criminal court (criminal court),! Can charge on person or more than one person (acting in concert)! Must charge at least one misdemeanor (can be more than one)! In addition can also charge petty offense! Can charge more than one offense! Cannot charge a felony! Starts the criminal action! Can go to trial with it Felony Complaint! Written accusation sworn! under the penalty of perjury! Filed with a local criminal court (criminal court),! Can charge on person or more than one person (acting in concert)! Must charge at least one felony (can be more than one)! In addition can also charge a misdemeanor and/or petty offense(s)! Starts the criminal action! Cannot go to trial with it 6

The Indictment! Verified written accusation by grand jury! Filed in Supreme Court! Charges one or more defendants with at least a felony (though it can be a misdemeanor)! It is the product of a grand jury Arraignment! Proceeding! Once accusatory instrument is filed, defendant(s) named in Accusatory Instrument appear before the court! Court acquires personal jurisdiction! Court sets course for further proceedings Arraignment Process (CPL 170.10)! When a misdemeanor complaint, felony complaint or information is filed with the court, the defendant must be arraigned on that accusatory instrument! Defendant must personally appear! Defendant must be informed of charges against him or her! Defendant must be given a copy of the accusatory instrument! Defendant has right to counsel! If defendant is without counsel they must be allowed time to get an attorney (retain or if indigent, free of charge) 7

After Arraignment Three Possible Events (CPL 170.10 [5])! Upon the arraignment, the court, unless it intends to make a final disposition of the action immediately thereafter, must, as provided in section 530.20 (1), issue a securing order either releasing the defendant on his own recognizance or fixing bail for his future appearance in the action Guilty Plea Dismissal Towards Trial final disposition of the action Need securing order 1 Guilty Plea! Defendant can plea guilty to the accusations in an Information! Defendant can plea guilty to the accusations in a misdemeanor complaint if defendant waives prosecution by information 2 Dismissal (Rare At Arraignment)! Dismissal order is in response to a motion! A motion must be in writing! People must be given an opportunity to be heard 3 Towards Trial: Process ARRAIGNMENT PRE-TRIAL TRIAL 8

Pre-Trial Stage 1. TRIAL JURISDICTION 2. DISCLOSURE 3. MOTION PRACTICE Stage One: Obtaining Trial Jurisdiction! An Information gives the court Trial Jurisdiction! A Misdemeanor Complaint contains hearsay! Must eliminate hearsay! Need to file a document to eliminate hearsay Obtaining Trial Jurisdiction Conversion of Misdemeanor Complaint into an Information Misdemeanor Complaint = + Information Supporting Deposition 9

Supporting Depositions! Written instrument! Subscribed and verified by a person other than the complainant! Contains factual allegations of an evidentiary character! The purpose to eliminate the hearsay,! it must be based upon personal knowledge! Support or tend to support the charge or charges contained in the misdemeanor complaint. Supporting Depositions: The Laboratory Report! If defendant is charged with possession of a controlled substance, there must be a test to see if the substance is a controlled substance (as opposed to chalk powder).! If defendant is charged with possession of a weapon (i.e., gun), there must be a test to see if the gun is operable.! This lab report is filed as a supporting deposition. Trial Jurisdiction! Upon filing a supporting deposition, the Misdemeanor Complaint will be deemed converted to an Information! Since the information will be a new accusatory instrument, the defendant must be arraigned! At this arraignment, the defendant will now be asked how he or she pleads 10

Trial Jurisdiction For Felonies: The Indictment Arraignment in Criminal Court on Felony Complaint Presentation to Grand Jury Grand Jury votes true bill Arraignment on Indictment in Supreme Court. Grand Jury Process In A Nutshell! The People present the case to a Grand Jury! Grand Jury consists of up to 23 Jurors! Minimum of 16 jurors must be present! Prosecutor is present! Defense counsel and defendant are not present (except when and if defendant testifies)! Prosecutor examines witnesses (jurors can also ask questions)! Defendant can testify! People presents the instructions (the law)! Standard is reasonable cause to believe! Need at least 12 to indict Felony Trial Jurisdiction! Once the Grand Jury votes a true bill, an indictment signed by the foreperson of the Grand Jury and the District Attorney is filed in the Supreme Court! Once it is filed, arraignment can take place! At arraignment, the court will have trial jurisdiction and the defendant can enter a plea. 11

Stage Two: Disclosure: Bill Of Particulars! Written Statement By The Prosecutor! Specifies Items Of Factual Information Not Recited In The Indictment [And Information]! Items Pertain To The Offense Charged! Includes The substance of each defendant s conduct encompassed by the charge! Whether the people intend to prove that the defendant acted as principal or accomplice or both! Contains the what and not the how Discovery: What is it?! Not an instrument! A process! Purpose is to discover certain evidence that the People possess What is available (CPL 240.20)! Statements to Law Enforcement Official.! Any written, recorded or oral statement of the defendant, and of a codefendant to be tried jointly, made to a public servant engaged in law enforcement activity or to a person then acting under the officer s direction or in cooperation with the police! Does not include any statements made during the criminal transaction;! Grand Jury Testimony of Defendant and/or Codefendant.! Any transcript of testimony relating to the criminal action or proceeding pending against the defendant, given by the defendant, or by a codefendant to be tried jointly, before any grand jury; 12

What is available (CPL 240.20)! Reports on Examinations.! Any written report or document, or portion thereof, concerning a physical or mental examination, or scientific test or experiment, relating to the criminal action or proceeding which was made by, or at the request or direction of a public servant engaged in law enforcement activity, or which was made by a person whom the prosecutor intends to call as a witness at trial, or which the people intend to introduce at trial;! Photos and Drawings by Law Enforcement.! Any photograph or drawing relating to the criminal action or proceeding which was made or completed by a public servant engaged in law enforcement activity, or which was made by a person whom the prosecutor intends to call as a witness at trial, or which the people intend to introduce at trial; What is available (CPL 240.20)! Photos of Released Property.! Any photograph, photocopy or other reproduction made by or at the direction of a police officer, peace officer or prosecutor of any property prior to its release pursuant to the provisions of section 450.10 of the penal law, irrespective of whether the people intend to introduce at trial the property or the photograph, photocopy or other reproduction;! Defendant s Property.! Any other property obtained from the defendant, or a co-defendant to be tried jointly;! Tapes. What is available (CPL 240.20)! Any tapes or other electronic recordings which the prosecutor intends to introduce at trial, irrespective of whether such recording was made during the course of the criminal transaction;! Favorable: Exculpatory or Brady Material.! Anything required to be disclosed, prior to trial, to the defendant by the prosecutor, pursuant to the constitution of this state or of the United States.! Information on the Arrest.! The approximate date, time and place of the offense charged and of defendant s arrest. 13

Request & Demand: Request for a Bill of Particulars & Demand for Discovery Arraignment Within 30 days Request and/ or Demand Within 15 days People Refuse People seek Protective Order People Comply Motion Practice For Disclosure! When the Request and/or Demand Fail! People unlawfully refuse to hand over everything requested and demanded! Defendant can move for court-ordered discovery and a bill of particulars! Should be a part of the omnibus motion Step Three: Motion Practice Defense Motion People s Answer If no factual dispute If factual dispute Court Decision Hearing 14

Defense Motion Process (CPL 255.20)! 45 Day Rule.! Motion must be made within 45 days of arraignment on the trial-ready accusatory instrument! Omnibus Motion Rule.! All motions must be grouped together (unless they can t be)! People s Response! People must respond within a reasonable time Motions (CPL 255.10)! Dismissing or reducing an indictment! Dismissing an information, or misdemeanor complaint! Granting discovery! Granting a bill of particulars! Removing the action! Suppressing the use at trial of any evidence! Granting separate trials Trial Steps Selection of Jury Voir Dire People s Opening Opening People s Case Defense Opening Defense Closing Defense Case Closing Verdict People s Closing 15

Jury Selection: Assembling The Petit Jury 12 Jurors for a trial on a Felony 6 Jurors for a trial on a Misdemeanor Voir Dire is the Process by which a jury is chosen from a panel Voir Dire: Questioning of Potential Jurors Challenging Potential Jurors Challenging for Cause Peremptory Challenges For Cause Lacks Qualifications! Not Qualified under Judiciary Law 510! Not US citizen! Not resident of county! Under 18 years old! Has felony conviction! Can t understand and communicate in English 16

For Cause Lacks Qualifications! State of mind that is likely to preclude him/her from rendering an impartial verdict based upon the evidence adduced at trial (CPL 360.25 [1] [b]);! Juror is related within the sixth degree to defendant, victim, prospective witness, counsel for defendant or People (CPL 360.25 [1] [c]);! Juror is or was party in a civil action against defendant, victim, prospective witness, counsel for defendant or People (CPL 360.25 [1] [c]);! Juror complained against or has been accused by defendant, victim, prospective witness, counsel for defendant or People in a criminal action (CPL 360.25 [1] [c]);! Juror bears some other relationship to defendant, victim, prospective witness, counsel for defendant or People of such a nature that it is likely to preclude juror from rendering an impartial verdict (CPL 360.25 [1] [c]);! Juror is to be a witness at the trial (CPL 360.25 [1] [d]); For Cause Lacks Qualifications! CPL 360.25 (1), Continued! Juror was a witness at the Grand Jury proceeding or at the preliminary hearing (CPL 360.25 [1] [e]);! Juror served on a trial or grand jury in a prior civil or criminal case involving the same conduct (CPL 360.25 [1] [e]).! Judiciary Law 524 (a):! Exemption based on prior service: Peremptory Challenges! Batson v Kentucky.! Cannot eliminate jurors based on race, sex, religion or other protected class 17

Peremptory Challenges! Peremptory Challenges For Misdemeanors (CPL 360.30)! Each side is given three (3) peremptory challenges for selection of jury (CPL 360.30 [2]) Peremptory Challenges Peremptory Challenges For Felonies (CPL 270.25) CLASS Class A Felony Class B Felony Class C Felony Class D Felony Class E Felony NUMBER 20 peremptory challenges 15 peremptory challenges 15 peremptory challenges 10 peremptory challenges 10 peremptory challenges Trial Order Selection of Jury Voir Dire People s Opening Opening People s Case Defense Opening Defense Closing Defense Case Closing Verdict People s Closing 18

Verdict GUILTY Sentencing HUNG JURY New Trial NOT GUILTY Double Jeopardy Attaches If Guilty Verdict GUILTY VERDICT MOTION TO SET ASIDE SENTENCE APPEAL MOTION TO VACATE Appeal Process! Appeal is of right to intermediate appellate court! Appellate Division or! Appellate Term! Appeal by permission to Court of Appeals 19